CELLPOINT CORPORATION PRODUCT AUCTIONS TERMS OF PURCHASE
This Agreement (the “Agreement“) sets out the terms and conditions upon which You purchase Product (as defined below) from Cellpoint Corporation of 20 Corporate Plaza Drive, Newport Beach, CA 92660, USA (“Cellpoint“) or any Cellpoint Entity. For purposes of this Agreement, “Cellpoint Entity” means Cellpoint or any entity that directly or indirectly controls, is controlled by or is under common control with Cellpoint. This Agreement applies to any Product that You purchase or make an offer to purchase via any channel, including but not limited to any channel created, owned or operated by Cellpoint Corporation (“Cellpoint”). In this Agreement “You” and “Your” refer to the person purchasing or making an offer to purchase any such Product from any Cellpoint Entity.
- Sale of Product.Pursuant to the terms and conditions hereof, Cellpoint and/or other Cellpoint Entities agree to sell to You, and You agree to purchase from Cellpoint and/or other Cellpoint Entities, certain units and/or categories of Product, that may include new condition merchandise, customer returns, unsellable, parts, components or other merchandise, may be in varying physical condition, and that may include breached, damaged or other products (the “Product“). You may only resell Product where legally permitted and in compliance with all laws. For the avoidance of doubt, this Agreement and the relationship of the parties pursuant hereto is non-exclusive. Save as expressly set out herein, the parties acknowledge and agree that there is no guarantee of quantity, kind or amount of Product to be provided under this Agreement. You have no return rights of any kind with respect to Product, or any right to reject Product, refuse to pick-up or to refuse delivery thereof. In this respect, all sales are final. Title and risk of loss will transfer in accordance with Section 5.
- Sale Process.Product will be sold pursuant to the auction process set forth in this Section 1 (the “Auction“). If You wish to bid on Product, You will be required to enter Your bid amount. By entering a bid for any Product (whether on any Cellpoint platform or otherwise) You confirm that You accept all the terms of this Agreement and warrant that You have all due permissions, consents and authorities to do so and to bind any corporate entity on whose behalf such bid is entered. In order for Your bid to be eligible for the Auction, Your bid must be (i) in an amount higher than both the amounts listed as the “reserve price” and the “highest bid,” as applicable, (ii) in the bid increments set forth on the bid page and (iii) placed before the scheduled end time for such Auction (including any additional time added by way of extension). If Your bid is deemed the winning bid, You will receive a notification in such manner as determined by Cellpoint or Cellpoint from time to time. It is Your responsibility to determine if You are the winning bidder for any Auction in which You participated. Cellpoint is not responsible for the failure of any notification to reach a winning bidder for any reason, including, without limitation, technical problems or other system error. If Your bid wins an Auction, You agree to purchase all Product offered in such Auction for the price You have offered in such bid.
- Shipping and Delivery.Inventory available on the site is offered on a Buyer Pickup basis only.
The Buyer is responsible for arranging appropriate transportation and pick-up from the auction location. Proof of payment is required before product is released for pick-up and pick-ups must be made before the end of the prescribed period. The buyer is responsible for all shipping costs directly with their carrier of choice.
- Third party IPR.You agree not to disassemble, modify, reverse engineer, decompile or do anything that would violate any licensing restrictions or other third party intellectual property rights in any Product.
- Removal of Cellpoint references.Under no circumstances will You advertise any Product for sale listing any Cellpoint Entity or any other previous owner as the seller or previous owner or in any other context. All sales activities undertaken by You for sale or other disposition of the Product must be on Your own behalf and may not refer to Cellpoint or any other Cellpoint Entity or any other previous owner in any way. You must remove any remaining tags, markings, labels, or packaging bearing any Cellpoint or previous owner identifiable marks, logos or other information, and any other documents or information (such as packing slips or address labels) that contain customer data or any other Cellpoint or other previous owner information. You agree that You are the seller of record for all sales of Product by You, including any sales by You made through any Cellpoint third-party selling service. If You sell any Product to any third party reseller, You will ensure that such third party reseller will only resell the Product clearly marked as used goods, even where such Product has been refurbished by You or such third party.
- Memory Data Wipe.You will erase all post-sale electronically stored information (“User Information”) from all Product, including, but not limited to, computers, cameras and mobile devices. This will be done as a secure data wipe performed to a standard acceptable to Cellpoint and that ensures that none of the User Information saved on the device by any user can be recovered or retrieved by any means. The data wipe standard for Hard Disk Drives will be DOD 5220.22-M. The standard for all other product lines will be specified by Cellpoint on a case by case basis. Cellpoint does not specify a data wipe standard for a product line, You will use best industry data wiping practice standards. Further:
- You will treat all User Information on any applicable Product as confidential and will not disclose it to any unauthorized persons or allow any unauthorized persons to gain access to it. Save as otherwise agreed, You accept all liability for any claims resulting from the unauthorized disclosure of User Information.
- In the event that You become aware of any User Information on any applicable Product evidencing actual or potential criminal behavior then You will:
- take such action as You are legally obliged to, including notifying the police and/or The Serious Organized Crime Agency (or the equivalent in any other jurisdiction);
- be entitled to take legal advice accordingly; and
- subject always to any legal requirement to the contrary, notify Cellpoint of the same.
- Payments and disputes
- The Auction price for the Product will be that determined in accordance with clause 1.2 and payment must be made the same day by wire transfer. If You fail to make payment as required, You forfeit any right to purchase such Product, and Cellpoint may deactivate Your account and password so You can no longer place bids. Further Cellpoint may, at its sole discretion, (i) contact the next highest bidder in the Auction for such Product and offer to sell such Product to such bidder at such bidder’s bid price or (ii) post such Inventory Products on the Cellpoint Site for sale in a new Auction.
- All amounts payable by You hereunder are due the same day you win the auction. You will not charge Cellpoint, and Cellpoint will not be liable for, any other taxes, charges, fees, costs, expenses, compensation, customs or import/export duties, levies or similar. Without limiting the foregoing, You will be responsible for all costs and expenses associated with Your performance of this Agreement and Your purchase and receipt of Product (save as expressly set out herein). You will pay all amounts due under this Agreement via electronic funds transfer to the bank account nominated by Cellpoint from time to time and payment will be required in cleared funds before Cellpoint releases any Product to You.
- Product is sold as-is and where-is. You just ensure that the quality and quantity of product matches the auction description before leaving the premises. There are no refunds or returns permitted for any reason.
- You will be solely liable for all sales tax, use tax, withholding tax, duties, surcharges and any other taxes or similar levies imposed by any governmental authority (hereinafter defined as “Transaction Taxes“) relating to the sale of Product by Cellpoint to You and for collection of all Transaction Taxes on any subsequent sale or disposition of such Product to any third party.
- Your Representations & Warranties.You represent and warrant as follows: You will (a) perform Your obligations hereunder in a professional and competent manner; (b) comply with all national, state and local laws, rules, regulations, orders, rulings, and ordinances, including, without limitation, any and all environmental, consumer protection, data protection and export control laws and regulations (“Laws”); (c) handle Product in accordance with all Laws and industry best practice relating to the management, treatment, recovery, recycling and disposal of waste and, if requested by Cellpoint, will provide all details of any such handling by You; (d) obtain and maintain all necessary licenses and permits for the performance of Your obligations hereunder, including, without limitation, the storage, removal, destruction, recycle and disposal of hazardous materials; (e) examine all topically applied products (for example, sunscreen, make-up, diaper ointment, etc.), all products meant for internal consumption (for example, food, vitamins, medications, etc.) and all products that are intended to come into contact with potentially infectious or biohazardous substances (for example, breast pumps, diabetic test kits, syringes, etc.) that Cellpoint supplies as Product, and will destroy and not sell or offer to sell any such Product that does not have an unbroken factory seal or has any other indication that it may have been used or opened; (f) not engage in any deceptive, misleading or unethical practices detrimental to Cellpoint, any other previous owner, or the public, including, without limitation, making statements regarding the Product that You cannot substantiate; (g) remove from all Product any markings, labeling or other indicia that the Product was previously stored, owned or held in inventory by Cellpoint or any other previous owner; and (h) examine all Product itself and independently determine whether the Product is in sellable condition under all Laws.
- You will defend, indemnify, and hold harmless Cellpoint, each Cellpoint Entity, and their affiliates (and the directors, officers, employees, and agents of Cellpoint, each Cellpoint Entity, and their affiliates) (“Cellpoint Indemnified Parties”) from and against any and all claims, actions, losses, liabilities, damages, settlements, judgments, and costs (including, without limitation, reasonable attorneys’ fees and legal expenses) arising out of or relating to: (a) the purchase and/or use of the Product by any person or entity after the sale of the Product to You, including if arising out of any allegations of negligence by Cellpoint or any defect (pre-existing or otherwise) in the Product; (b) any disposal, destruction, or recycling of any Product by You; (c) any removal or remediation action under any environmental or similar Laws in connection with the Product; (d) any claim of misused data or software improperly distributed due to resale or disposal of any Product; and (e) any breach by You of the terms of this Agreement (collectively, “Claims”). You will use counsel reasonably satisfactory to Cellpoint to defend each Claim. Cellpoint may, at its own expense, participate in the defense of any Claim with counsel of its own choosing. You will not, without Cellpoint’s prior written consent (which may be given or withheld at Cellpoint’s sole discretion), enter into or acquiesce to any settlement which contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Cellpoint Indemnified Party or which would otherwise adversely affect any Cellpoint Indemnified Party or Parties. Your duty to defend is independent of Your duty to indemnify. Your obligations under this Section are independent of any of Your other obligations under this Agreement.
- Title and Risk.
- Unless otherwise agreed between the parties in writing, risk in Product shall pass to You on pick-up.
- Title to any Product shall remain with, and shall not pass from, Cellpoint until the time at which Cellpoint has received payment in full (cleared funds) for that Product, in which case title to the relevant Product shall pass to You at such time.
- Use of information
- Confidentiality/Publicity.You and Your representatives will (a) protect and keep confidential the existence of this Agreement, its terms and conditions, the existence and nature of Your business relationship with Cellpoint and this Agreement, including without limitation the fact that Cellpoint provides You with any Product, and any other information obtained from Cellpoint under or in connection with this Agreement or related to the services provided by You hereunder that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to Cellpoint’s pricing, quantity and incentive terms, technology, customers, business plans, marketing activities and finances), (b) use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling Your obligations under this Agreement. All such information will remain Cellpoint’s exclusive property, and You will have no rights to use such information except as expressly provided herein. You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Cellpoint or any of its affiliates in any manner without prior written authorization of such use by Cellpoint. You will not issue press releases or publicity relating to Cellpoint or this Agreement or reference Cellpoint or its affiliates in any brochures, advertisements, client lists or other promotional materials.
- Use of Cellpoint Proprietary Rights.You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Cellpoint or any Cellpoint entity in any manner (including, without limitation, reference to You as a client, customer or supplier of Cellpoint in any press release, advertisement or other promotional material) without prior written authorization of such use by Cellpoint.
- “AS IS” Sale, Disclaimer.Cellpoint will have good and merchantable title to the Product immediately prior to its sale to You, although it may not have any documentation evidencing such title. Other than the foregoing, however, CELLPOINT CORPORATION CONVEYS ALL PRODUCT TO YOU “AS IS, WHERE IS” WITH ALL FAULTS AND DEFECTS AND CELLPOINT CORPORATION DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PRODUCT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. ALL SALES ARE FINAL AND CELLPOINT CORPORATION IS NOT LIABLE FOR ANY CLAIM, LOSS, DAMAGE, LIABILITY OR EXPENSE OF ANY KIND CAUSED DIRECTLY OR INDIRECTLY BY ANY PRODUCT. DESCRIPTIONS PROVIDED BY CELLPOINT CORPORATION CONCERNING THE CONDITION OF PRODUCT AND/OR ANY DAMAGE THERETO ARE NON-BINDING AND CELLPOINT CORPORATION DOES NOT WARRANT THAT ANY SUCH DESCRIPTIONS ARE CORRECT. ACCORDINGLY, YOU WILL NOT RELY ON SUCH DESCRIPTIONS AND YOU WILL BE SOLELY LIABLE TO ITS CUSTOMERS IN RESPECT OF ALL CLAIMS WHERE ANY SUCH CUSTOMER ASSERTS ANY RIGHT OR CLAIM IN RELATION TO ANY INCORRECT DESCRIPTION. Cellpoint’s maximum liability, and Your exclusive remedy, relating to the Product will be limited to the amount paid by You for the Product in question.
- You will not assign any part or all of this Agreement, or subcontract or delegate any of Your rights under this Agreement, without Cellpoint’s prior written consent. Cellpoint may assign this Agreement (or any of its rights and/or obligations under this Agreement): (a) to any other Cellpoint Entity; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction.
- Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery to the other party at the address below:
If to Cellpoint: Cellpoint Corporation, 20 Corporate Plaza Drive, Newport Beach, CA 92660, USA, Attn: Legal Department
If to You: The correspondence address notified by You to Cellpoint.
Notice is effective: (a) when delivered personally, (b) 3 business days after sent by certified mail, (c) on the business day after sent by a nationally recognized courier service, or (d) on the business day after sent by facsimile with electronic confirmation to the sender. A party may change its notice address by giving notice in accordance with this Section 9.2.
- If any provision of this Agreement is determined to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
- No Waiver.A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right under this Agreement. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
- Cumulative Rights.The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at Law or in equity.
- The Section headings of this Agreement are for convenience only and have no interpretive value. This Agreement may be executed in counterparts, which together will constitute one and the same agreement. Facsimile versions of such executed counterparts will be as effective for all purposes hereunder as the originally executed versions thereof.
- The following provisions (together with any other provisions that by their terms or nature are intended to survive termination or expiration of this Agreement) survive termination or expiration of this Agreement: Indemnity (Section 4); Title and Risk (Section 5); Confidentiality/Publicity (Section 6); Use of Cellpoint Proprietary Rights (Section 7); and General (Section 9).
- Injunctive Relief.You acknowledge that any material breach of this Agreement by You would cause Cellpoint irreparable harm for which Cellpoint has no adequate remedies at Law. Accordingly, Cellpoint is entitled to specific performance of this Agreement or injunctive relief for any such breach. You waive all claims for damages by reason of the wrongful issuance of an injunction and acknowledges that Your only remedy in that case is the dissolution of that injunction.
- Costs and Legal Fees.In the event of any legal proceeding between the parties arising from this Agreement, the substantially prevailing party may recover from the other party all of its reasonable costs and expenses, including without limitation attorneys’ fees and court costs.
- Limitations on and Exclusions of Liability.CELLPOINT CORPORATION IS NOT LIABLE UNDER ANY CIRCUMSTANCES FOR LOST OPPORTUNITIES OR PROFITS, OR FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND (ALL OF WHICH TERMS INCLUDE, WITHOUT LIMITATION, PURE ECONOMIC LOSS, LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND SIMILAR LOSS).
- Entire Agreement.This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersedes the parties’ prior agreements, understandings and discussions relating to this Agreement. No modification of this Agreement is binding unless it is in writing and signed by Cellpoint and You.
- Governing Law; Jurisdiction and Venue.This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Grand-Duchy of Luxembourg without reference to the rules governing choice of laws. Each Party hereby irrevocably submits to the non-exclusive jurisdiction and venue of the Courts of the judicial District of Luxembourg City, with respect to any claim, action or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby, and hereby agrees not to commence or prosecute any such claim, action or proceeding other than in the aforementioned courts. The parties’ rights and obligations are not governed by the United Nations Convention on Contracts for the International Sale of Goods.